NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Week after week I find myself reading decisions that deal with the imposition of sanctions against one party in a family law matter and the validity of these sanctions.  Oddly enough it seems as though the recent flood of sanction-related cases have to do with a party's aberrant behavior and the court's attempt to curb this behavior in the form of a financial punishment.

Sanctions are not a new method of coercion or punishment in the court system.  Non-family related matters often use sanctions and some may say do so more willingly that family part judges. 

As with anything in life, there are times when we are asked or have to do things that we simply don't want to do or perhaps don't feel like doing at that moment.  Well imagine that feeling mixed with the high emotions that often run in any family law matter.  The simple reality is that there are times when despite an attorney's best efforts, a client simply will not do what they are asked to do or what the court and rules require them to do.  This is not only an uncomfortable and perhaps frustrating position for the attorney but even more importantly, a precarious position for the client. 

When the courts are involved disobedience on what one may deem is 'not a big deal' or 'won't make a difference' can carry heavy consequences.  Most frequently a court will hold one party in violation of litigant's rights.  In simplest terms, that means that one party has violated the rights of the other party and the court is noting this violation in a formal record, by way of an Order memorializing the violation.  The next step or often coupled with a finding of a violation of litigant's rights is an award of counsel fees to the non-violating party.  Often as a deterrent to future non-compliance and perhaps even as a punishment, the court will order the non-complying party to pay either all or a portion of the other party's counsel fees.  Oftentimes, this is enough to get the misbehaving party's attention.  It may not be though and where it is not and all other remedies have proven fruitless, a court can and will order sanctions. 

Sanctions are often a monetary fine but tend to be more serious then a payment of counsel fees.  I have seen sanctions in the form of a daily payment for each day that a party is non-compliant.  I have also seen bench warrants issue for the arrest of a non-compliant party.  In family law matters, these two methods are used - but they are far from everyday occurrences, as court's many times give litigants way too much leeway even when orders are clearly violated.

So what's with all the fuss from the Appellate Division about these sanctions if they are used when everything else fails you ask?  Well the recently decided case that I'm referencing dealt with an award of future sanctions for future non-compliance of an order.  In the matter of Sheinbaum v. Campbell, A-3857-07T3, decided August 25, 2009, the court ordered a $500 sanction against a party for each future violation of a court Order.  In this highly litigious matter where several motions and emergent applications had been filed where the one party failed to comply with multiple Orders issued, the trial judge ordered the above future sanction in conjunction with counsel fees and other relief.

On appeal, the Appellate Division held that the ordering of a $500 sanction for each future violation was "premature".  In addition, because the lower court did not explain how it arrived at the the amount; why a smaller sanction would not have been effective; or consider the party's inability to pay, the Court could not uphold the Order as it stood.

The message - perhaps if the lower court had explained how it came to the $500 amount and justified this amount versus a smaller amount and considered the party's ability to pay, the sanction may be have been upheld.  That remains to be seen.  In navigating your way through the court process, keep in mind that your non-compliance could have serious monetary or other consequences.  Then again, maybe it wont. 

EDITOR'S NOTE:  I have previously blogged about frustrations by lawyers and litigant's alike about a court not enforcing their own orders, not granting counsel fees when enforcement motions are filed, etc.  Too many recalcitrant litigant's know this too and take advantage of the system, knowing it will cost the other party money to get what they are entitled to and that they may suffer a slap on the wrist.  As a young lawyer, I practiced in Colorado for about 2 years after practicing in NJ for a year.  After my brief experience in NJ, I was shocked dung my first contempt hearing when the dad was cuffed and sentenced to 6 months for contempt for failing to pay child support.  Attorneys in other states have commented to me that they are surprised how lax our courts are in enforcement matters.  That does not mean that a litigant should give up and not file enforcement motions.  As in the case the Sandra blogged about, eventually enough was enough.  That said, even when sanctions were imposed, they did not hold up.  ERIC S. SOLOTOFF

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For many, litigation after a final judgment of divorce is a well known reality.  Oftentimes, especially when children are involved, issues arise regarding child support, other expenses for the children, enforcing terms of a judgment or agreement. 

In the matter of Warmke v. Warmke, Appellate Division, decided January 26, 2009, the Court faced such issues as noted above in what stemmed from post judgment motion practice.  Ms. Warmke filed an application with the trial court seeking to fix the amount of childcare arrears owed by Mr. Warmke, modify and enforce child support payments, modify parenting time, modify the amount of life insurance required by their agreement and for counsel fees.  Mr. Warmke filed a cross application requesting that Ms. Warmke contribute to summer camp expenses, a hearing aid for the older child, medical expenses, requiring her to share the transportation reimbursement from the public school and for counsel fees.

The Warmke's had been divorced since 1996 and had entered into an Agreement resolving the outstanding issues in their marriage.  They had two children, the eldest of which suffers from Down Syndrome, Pervasive Developmental Disorder, anxiety disorder, seizures, and hearing and vision impairments.

The parties' agreement provides for joint legal custody. Ms. Warmke has primary physical custody and Mr. Warmke receives liberal parenting time.  At some point after the agreement was entered into, the parties modified their parenting time arrangement, allowing Mr. Warmke primary physical custody during the school summer holiday.

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As previously reported in this Blog here and here, New Jersey has taken the initiative on penalizing individuals who fail to pay their court-ordered child support or who have failed to show up for court hearings.  In just one week in December 2008, nearly 1,000 delinquent individuals were rounded up as part of the state Sheriff's Association biannual child support warrant sweep.  Nearly $300,000 was collected statewide, with the most warrants served in Monmouth County and by far the most monies collected in Bergen County.

EDITOR'S NOTE:  As noted in prior posts, on wonders whether there will more more support arrears caused by the current economy, whether there will be more motions for modification and/or more motions for enforcement.  The longer the economy suffers, it will be interesting to see whether the law of imputation of income, changes of circumstances and enforcement changes.      Eric S. Solotoff

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 In an interesting opinion from the Appellate Division, Faro v. Randel R. Vonder Heyden, III, found here, the Appellate Division reversed a trial court's denial of a plaintiff ex-wife's post-judgment Order denying her motion to enforce litigant's rights due to the ex-husband's failure to pay child support over a period of several years.  The Appellate Division found that the wife's delay of several years in seeking payment did not warrant application of the equitable doctrine of laches and that the wife could not waive the claim to the monies, as that right belonged to the children of the marriage.

Two children were born of the marriage and the parties were ultimately divorced in 1992.  The final judgment of divorce granted the wife primary residential custody of the children and the husband was required to pay $90 in weekly child support; $20 in weekly health insurance; 50% of the unreimbursed medical expenses incurred on the children's behalf; and to provide $100,000 in life insurance for the children's benefit.  The husband, however, failed to pay the weekly medical and dental insurance, failed to pay his 50% share of one child's orthodontic expenses, and never provided proof that he obtained life insurance.  The wife a motion to compel payment that was denied without prejudice.

The wife did not thereafter seek enforcement of litigant's rights until 2007 in response to the husband's motion to emancipate one of the party's children.  She sought more than $19,000 in accumulated health insurance contributions, as well as proof of life insurance for the benefit of the party's other child.  Neither party contested the other party's application.

Without a hearing, the trial court found the child emancipated and ordered the husband to provide proofs regarding the life insurance.  However, the wife's request for $19,000 was denied due to her delay in seeking same and the Court seemingly left the husband with a slap on the wrist for his delinquencies.  The wife's subsequent motion for reconsideration was also denied under the doctrine of laches. 

Disagreeing with the Court application of the laches doctrine to bar the wife's claim, the Appellate Division noted that the husband did not deny the amounts that the wife claimed he owed, his position never changed, and he was not prejudiced by the delay in the wife's application, as he continued in his failures to pay.  The Appellate Division found neither doctrine applicable even if properly raised as the husband continued in his failures to pay and the claim to the monies owed was not waived due to the wife's delay, as the right to receive the payments actually belonged to the children, rather than her.  Finally, the Appellate Division applied an "unclean hands" concept, noting that the inequity caused by the husband's own failure to pay over time did not entitle him to benefit from the equitable laches concept.

The Appellate Division was protecting the rights of the children despite the wife's delays, not allowing the husband to get away with his complete failure to pay for their medical insurance and then seeking the emancipation of one of the children in the process. 

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One of the hardest questions to answer for a client is "why didn't the judge enforce the Order?" 

Unfortunately, there is no good answer for this question.  Some judges are extremely literal in interpreting an Order and strict with regard to non-compliance.  Others are inexplicably not.

In a matter today where a client who has custody sought sanctions and counsel fees against his former spouse who refused to return the child to him in the state that he now lives after the child's summer visit, the judge's rulings were somewhat contradictory. The mother argued that the Consent Order was only a temporary one but the judge rejected the argument and said that the Order was clearly not temporary.  One would think that that decision would naturally lead to sanctions for interference with a custody Order under the Court Rules and at the very least, would give rise to an award of counsel fees for having to file an emergent application to have the child returned (which was granted when filed and confirmed today).  Wrong.  Despite clear defiance of an Order, including defiance after the mother got an attorney who could explain the legal ramifications of her conduct, there were no repercussions in terms of an award of fees or sanctions. 

I have had other matters throughout the years where the result would have been entirely different.  However, in my experience, once a party knows that a judge is not strident in enforcement, they could become empowered to be even more brash in their defiance. 

With all due respect, this does not serve the legal system.  Moreover, the Court Rules suggest that a party who is forced to file an enforcement motion should be entitled to an award of fees if successful.  From a policy standpoint, they should be made whole because they would not have had to file an application but for the other person's failure to comply with an Order.  One could argue that unless 100% of the fees are ordered, that the belligerent party has gained some measure of victory, or at least, was able to inflict some measure of pain on the other party.  That result is unfortunate and for policy reasons, should not be countenanced by a Court.  Enforcing Orders and awarding a full measure of fees would be a way to remedy this and perhaps prevent future non-compliance.

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Tasara Masaya v. Peter Griffin and Deirdre Newman

This case is an appeal from a final order of the Family Part. Peter Griffin was married to Deirdre Newman in 1985. They had two children. In 2000 Griffin and Newman divorced. The parties’ Property Settlement Agreement required that the two children remain the beneficiaries of Griffin’s $150,000 policy and his employer life insurance policy until their emancipation.  In 2004, Griffin had another child with Tasara Masaya. In 2005, Masaya filed a complaint for custody and child support.  The Court entered a Consent Order that provided Masaya with child support, arrears, child costs, and required Griffin to obtain life insurance of $200,000 to secure his child support obligation. In 2006, Masaya sought to enforce the Order regarding the arrears and the life insurance. Although Griffin was in the hospital at the time, the judge without knowledge of the PSA, awarded Masaya’s child 85% of the life insurance. 

Following Griffin’s death, an order to show cause was filed regarding the life insurance. The order to show cause informed the Court of the PSA, and the judge modified her previous Order. Masaya appealed. The appellate division cited Della Terza v. Estate of Della Terza, 276 N.J. Super. 46 (App. Div. 1994), when rendering its decision that “[w]hen incorporated in an agreement or court order, the parent’s obligation to provide such insurance for the benefit of his or her child gives the child an equitable interest in the proceeds of a policy of insurance on that parent’s life, regardless of the beneficiary designation in effect at the time or his or her death”.    

When a child of a deceased parent has an equitable interest in the proceeds of a life insurance policy, i.e. they are the beneficiary, because the deceased parent has an obligation to provide such insurance, that interest is enforceable as an equitable assignment. Taking it one step further, when a parent has other children born after the order establishing the obligation to maintain life insurance for the child of the marriage, the prior obligation is enforceable regardless of a subsequent redesignation of beneficiaries. In essence, the first in time still has an enforceable right under the terms of the Property Settlement Agreement and a subsequent child and subsequent obligation, does not nullify that obligation. 

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